Analysis: EU presses on in face of British dithering

If the UK cannot get its house in order, then the least the EU can do is plan to prepare theirs.

This appears to have been the guiding light behind the drafting of the proposed treaty in Brussels covering the UK's withdrawal from the EU that will be published by the EU Commission on Wednesday.

In the absence of the British proposing concrete ideas around a future EU-UK free trade agreement or a specific solution for the Irish Border post-Brexit - Options A and B in December's political agreement on the Border issue - Brussels has had to concentrate on preparing for Option C, the so-called "backstop".

This is the default position, set out in December, that will kick in to ensure that there is regulatory alignment - common rules and procedures - north and south of the Border. This essentially maintains the status quo and an invisible border on the island of Ireland, the key objective of the Irish Government.

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The view from the European Commission and the member states - other than the departing UK - is that the draft could not simply repeat the more general language contained in the December agreement and that the process had to move forward, even if the British have not.

Square the circle

At the very least, from the Irish perspective, the draft sets a basis on which to proceed. The hope in Dublin and Brussels is that it might encourage the UK government to offer substantive proposals covering Options A and B.

It might push Theresa May’s government to explain how the British can square the circle: leave the EU single market and customs union and still keep the Irish Border open.

In the absence of specifics from London that might build foundations on Option A or B in December’s political agreement, Brussels has had to start construction around Option C. That is the only option in the EU’s gift.

Based on a preview of the text of the withdrawal agreement, the key point is maintaining a common regulatory area on the island.

Other options can be pursued alongside this one but the third option will maintain the rules of the single market and the customs union as they are covered in the existing relationship between Northern Ireland and the Republic of Ireland.

The language of the text, according to EU sources, is unambiguous, comprehensive and robust.

This will put into legal effect the December agreement around the “backstop” ensuring regulatory alignment north and south so that people and goods can move freely across the Border, as they do now, as if Northern Ireland were staying in the EU customs union and single market with the Republic of Ireland.

Little engagement

The text of the draft will reflect what little engagement there has been between the EU and the UK on the substance of what the British plan to do with the Irish Border and the fact that the proposed agreement is something of another opening position from Brussels ahead of further negotiations with the British.

The strength of the draft’s language reflects the high level of consensus amongst the remaining 27 EU member states on the terms of the draft and the frustration with the lack of a firm position from the UK.

There is a general feeling that the EU side genuinely do not know what the British want and they are going to see how the British react to this draft in the hope that something might emerge. In other words, by declaring what they do not want, the British might actually decide what they actually want with the Border.

One EU source acknowledged that the Conservatives and the DUP would inevitably argue strongly that the draft does not contain all assurances given in December - namely, May’s commitment to the DUP that there will be no new regulatory barriers between Northern Ireland and the UK.

May's call to Taoiseach Leo Varadkar on Monday night suggests a nervousness on her part around the EU's strong focus around Option C - a scenario that effectively pushes the Border into the Irish Sea, which is a deal-breaker for the DUP.

This will be the real battleground issue over the coming days.